Citation Nr: 1141751
Decision Date: 11/09/11 Archive Date: 11/21/11
DOCKET NO. 03-01 854 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to an initial rating in excess of 20 percent from July 16, 1999, through March 7, 2010, and in excess of 40 percent from March 8, 2010, for the orthopedic manifestations of a low back disability.
REPRESENTATION
Appellant represented by: Jeany Mark, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jennifer Hwa, Counsel
INTRODUCTION
The Veteran served on active duty from November 1994 to July 1999.
This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
In February 2006, the Board denied entitlement to an initial rating in excess of 20 percent for lumbosacral strain. The Veteran appealed the case to the United States Court of Appeals for Veteran's Claims (Court). A Memorandum decision was received in May 2008, and the Court entered Judgment the following month, vacating the Board's February 2006 decision, and remanding the claim to the Board for readjudication consistent with the Memorandum decision.
In October 2008, the Board remanded the claim for additional development, to include the obtainment of contemporaneous orthopedic and neurological examinations which were conducted in March 2010. In an April 2010 rating decision, the RO granted an increased rating of 40 percent for the Veteran's low back disorder, now classified as mild degenerative disc disease (DDD) and facet arthrosis at L5/S1 with annular bulge. The 40 percent rating was assigned effective from March 8, 2010. However, as this grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993).
The April 2010 rating determination also assigned separate 10 percent ratings for lumbar radiculopathy of the right and left lower extremities. These 10 percent ratings were assigned effective from September 23, 2002, the date of the change of pertinent rating criteria. The Veteran has not expressed disagreement with the grant of service connection for lumbar radiculopathy of the right and left lower extremities, nor the assignment of 10 percent ratings. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, those matters have been resolved and are no longer in appellate status and the issue on the title page has been recharacterized appropriately.
In June 2010, the Board denied entitlement to an initial rating in excess of 20 percent from July 16, 1999, through March 7, 2010, and in excess of 40 percent from March 8, 2010, for the orthopedic manifestations of a low back disability. The Veteran again appealed the case to the United States Court of Appeals for Veterans Claims (Court). In March 2011, the Court issued an Order vacating the June 2010 decision and remanding it to the Board for further development and adjudication consistent with a March 2011 Joint Motion for Remand.
In a May 2010 written brief presentation, the Veteran's service representative raised the issue of entitlement to a total disability rating based upon individual unemployability. Additionally, in March 2011, the Veteran filed informal claims for entitlement to service connection for a bilateral foot disability, to include as secondary to a service-connected low back disability, and service connection for an acquired psychiatric disorder, to include as secondary to a service-connected low back disability. These issues have not been properly developed or certified for appellate consideration. These matters are referred to the RO for such further action as is deemed appropriate.
The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required.
REMAND
Additional development is needed prior to further disposition of the claim.
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court found that an examination which merely recorded the Veteran's range of motion without considering his functional loss due to flare-ups or the extent of the pain on motion was inadequate and did not comply with the requirements of 38 C.F.R. §§ 4.40, 4.45 (2011) that the disabling effect of painful motion must be considered when rating joints. On VA examination in March 2010, although the examiner provided findings of functional impairment in terms of additional range of motion loss upon repetitive motion, the examiner did not opine on whether pain could significantly limit functional ability during flare-ups and merely stated that the Veteran had flare-ups of his lumbar spine disability once a month. Thus, the Board finds that the March 2010 examination is inadequate because it does not comply with the requirements of 38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
The Court has instructed that in applying 38 C.F.R. §§ 4.40, 4.45, VA shall obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner shall also determine the point during the range of motion, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, No. 2009-2169, 2011 WL 3672294 (Vet. App. Aug. 23, 2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2011).
Therefore, the Board finds that a remand for another examination and opinion is necessary in order to fairly decide the merits of the Veteran's claim.
Additionally, the Veteran has submitted records of his absences from work for the years 2006 to 2009 due to his low back disability. It appears from the evidence that during this time period, the Veteran had 10 sick days and 56 days of Family Medical Leave Act (FMLA) days. The Veteran has explained that some of the latter FMLA days in his employment records were actually sick days. The Board finds that the evidence suggests consideration of an extraschedular rating for the Veteran's low back disability claim. The Board cannot adjudicate this issue in the first instance. The claim should be referred to the Under Secretary for Benefits or to the Director of Compensation and Pension Service as provided for in 38 C.F.R. §§ 3.321, 4.16(b) and a rating decision should be issued for the issue of entitlement to an extraschedular rating for a low back disability.
Accordingly, the case is REMANDED for the following actions:
1. Arrange for the Veteran to undergo a VA spine examination, by an examiner with the appropriate expertise, to determine the current severity of his service-connected low back disability. The entire claims file must be provided to the examiner designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished and all clinical findings reported in detail.
The examiner should conduct range of motion testing of the low back (expressed in degrees, with standard ranges provided for comparison purposes). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or in coordination associated with the low back. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the low back due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion.
Further, the examiner should indicate whether the Veteran has any ankylosis of the spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable.
Lastly, the examiner should comment upon the impact of the Veteran's service-connected low back disability on his employability. In forming the opinion, the examiner should disregard both the age and any nonservice-connected disabilities of the Veteran.
The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached.
2. Refer the claim for an extraschedular rating based on the service-connected low back disability to the Under Secretary for Benefits or to the Director of Compensation and Pension Service as provided for in 38 C.F.R. § 3.321 and 4.16(b).
3. Then, readjudicate the claim. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).